Alator General Terms and Conditions
1. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Agreed Purposes: sharing of personal data for the purposes of managing the performance of the Contract.
Applicable Law: means any statute, statutory instrument, order, regulation, rule, policy, guidance or recommendation issued by any governmental, statutory or regulatory body, industry code of conduct or guideline which relate to the Contract or the Services.
Business Day: a day other than a Saturday, Sunday or public holiday in Scotland, when banks in Edinburgh are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Commencement Date: the date on which the Contract is formed.
Conditions: these Conditions as amended from time to time in accordance with clause 13.5.
Contract: has the meaning given in clause 2.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation.
Customer: the person or firm who purchases Services from the Supplier.
Customer Default: has the meaning set out in clause 4.2.
Data Discloser: a party that discloses Shared Personal Data to the other party.
Data Protection Legislation:
(a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
(b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the party is subject, which relates to the protection of personal data.
Deliverables: the data, information or documentation produced or arising from completion of the Services, as detailed in the Quotation.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
Equipment: the items of equipment listed in the Quotation.
Hire Period: such time as the Equipment leaves the Supplier’s premises for delivery to the Customer’s premises, until returned to the Supplier or delivered to such other destination as the Supplier may direct.
Permitted Recipients: the parties to the Contract, the employees of each party, and any third parties engaged to perform obligations in connection with the Contract.
Purchase Order: the Customer’s written order for the supply of Services by the Supplier to the Customer in accordance with the terms of these Conditions and the Quotation.
Quotation: the Supplier’s formal statement detailing the scope and costs of the proposed Services.
Risk Period: the period during which the Customer is liable for loss, theft, damage or destruction of the Equipment.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as specified in the Quotation.
Shared Personal Data: the personal data to be shared between the parties under clause 6.1 of these Conditions and confined to contact details of the respective staff of the Supplier and Customer who will be managing the performance of the Contract.
Supplier: Alator Data Services Ltd registered in Scotland with company number SC681332.
UK GDPR: has the meaning given to it in section 3(10), as supplemented by section 205(4), of the Data Protection Act 2018.
1.2 Interpretation:
(a) Unless expressly provided otherwise in these Conditions, a reference to legislation or a legislative provision:
(i) is a reference to it as amended, extended or re-enacted from time to time; and
(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes email.
2. Basis of Contract
2.1 The Quotation constitutes an offer by the Supplier to provide Services in accordance with these Conditions and the terms of the Quotation.
2.2 These Conditions shall be deemed to be accepted when the Customer:
(i) issues written acceptance of the Quotation; or
(ii) issues a Purchase Order after receipt of the Quotation and these Conditions,
at which point and on which date the contract shall be formed (the “Contract”).
2.3 The terms contained in the Quotation and these Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing, whether contained in a Purchase Order or otherwise.
2.4 Any Quotation given by the Supplier is only valid for a period of 30 Business Days from its date of issue.
3. Supply of Services
3.1 The Supplier shall supply the Services to the Customer in accordance with the Quotation in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Unless expressly stipulated otherwise in the Quotation, a Quotation shall be based on the performance of the Services during Business Hours and Business Days.
3.4 The Supplier reserves the right to amend the Quotation if necessary to comply with any Applicable Law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.5 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4. Customer's Obligations
4.1 The Customer shall:
(a) ensure that the terms of the Purchase Order and any information provided otherwise are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises and other facilities as reasonably required by the Supplier;
(d) at its own cost, provide the Supplier with scaffolding and lifting gear of industry standard and in accordance with the requirements specified by the Supplier in the Quotation or otherwise;
(e) provide suitable access and connection to electricity, heating, lighting and water as required for carrying out the Services;
(f) provide the Supplier with such information, data and documentation as the Supplier may reasonably require in order to supply the Services, and ensure that such information and data are complete and accurate in all material respects;
(g) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(h) comply with Applicable Law, requirements of any relevant statutory and regulatory bodies, health and safety and security policies, and obey all of the Supplier’s lawful and reasonable directions;
(i) where the Equipment is not fixed for the purpose of carrying out the Services, store the Equipment separately from all other goods or equipment held by the Customer so that the Equipment remains readily identifiable as the Supplier’s property;
(j) not remove, deface or obscure any identifying mark or packaging on or relating to the Equipment;
(k) not use or handle the Equipment in any circumstances whatsoever except with the express permission of the Supplier, and in such cases, in accordance with the Supplier's instructions; and
(l) notify the Supplier immediately in the event that the Equipment is damaged, lost, stolen or used without the Supplier’s permission.
4.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. Charges and Payment
5.1 The Charges for the Services shall be calculated as follows:
(a) the Charges shall be calculated in accordance with the Supplier's fee rates, as set out in the Quotation;
(b) the Supplier reserves the right to increase the fees set out in the Quotation to account for increased costs in supplying the Services. The Supplier shall notify the Customer in writing prior to commencing Services with such increased fees;
(c) the Supplier's daily fee rates for each individual are calculated on the basis of a 10-hour day worked on Business Days, unless otherwise agreed by the parties in writing;
(d) the Supplier shall be entitled to charge an overtime rate as detailed in the Quotation on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 5.1(c);
(e) days on site will be billed at a minimum rate of 8 hours per day per operative;
(f) any travel from accommodation to site in excess of 30 minutes will be billable at the operative’s hourly rate; and
(g) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by individuals whom the Supplier engages in connection with the Services, including travelling expenses, hotel costs, subsistence, and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, unless otherwise agreed by the parties in writing.
5.2 The Supplier shall invoice the Customer on completion of the Services.
5.3 The Customer shall pay each invoice submitted by the Supplier:
(a) unless otherwise agreed by the parties in writing, within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier,
and time for payment shall be of the essence of the Contract.
5.4 All amounts payable by the Customer under the Contract are exclusive of value added tax chargeable from time to time (VAT) or any other government levies. Where any taxable supply for VAT purposes is made under the Quotation by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.5 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under Clause 11, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.5 will accrue each day at 3% a year above the Bank of England's base rate from time to time, but at 3% a year for any period when that base rate is below 0%.
5.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding, other than any deduction or withholding of tax as required by law.
6. Data Protection
6.1 Each party acknowledges that one party, referred to in this clause as the Data Discloser, may disclose to the other party Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
6.2 Each party shall comply with all obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.
6.3 Each party shall:
(a) ensure that it has all necessary notices, consents and lawful bases in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
(b) give full information to any data subject whose personal data may be processed under this agreement of the nature of such processing;
(c) process the Shared Personal Data only for the Agreed Purposes;
(d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
(e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data, including obligations of confidentiality, which are no less onerous than those imposed by this agreement;
(f) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss, destruction or damage; and
(g) not transfer any personal data received from the Data Discloser outside the UK unless the transferor ensures that appropriate safeguards, adequacy protections, binding corporate rules, or other lawful transfer mechanisms are in place under the applicable Data Protection Legislation.
6.4 Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:
(a) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
(b) promptly inform the other party about the receipt of any data subject rights request;
(c) provide the other party with reasonable assistance in complying with any data subject rights request;
(d) not disclose, release, amend, delete or block any Shared Personal Data in response to a data subject rights request without first consulting the other party wherever possible;
(e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation;
(f) notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;
(g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the Shared Personal Data;
(h) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
(i) maintain complete and accurate records and information to demonstrate its compliance with this clause 6 and allow for audits by the other party or the other party's designated auditor; and
(j) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation.
6.5 Each party shall indemnify the other against all liabilities, costs, expenses, damages and losses suffered or incurred by the indemnified party arising out of or in connection with breach of the Data Protection Legislation by the indemnifying party, its employees or agents, provided that the indemnified party gives prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim, and sole authority to manage, defend and/or settle it. The liability of the indemnifying party under this clause shall be subject to the limits set out in clause 7 of these Conditions.
7. Limitation of Liability
7.1 The Supplier has obtained insurance cover in respect of:
(a) public liability not exceeding £5,000,000 for any one claim;
(b) products liability not exceeding £5,000,000 for any one claim and in the aggregate;
(c) employers’ liability not exceeding £10,000,000 for any one claim;
(d) employers’ liability not exceeding £5,000,000 for any one claim in respect of offshore work, terrorism and asbestos; and
(e) professional indemnity not exceeding £2,000,000 for any one claim.
The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
7.2 References to liability in this clause 7 include every kind of liability arising under or in connection with the Contract including liability in contract, delict including negligence, misrepresentation, restitution or otherwise.
7.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
7.4 Nothing in this clause 7 shall limit the Customer's payment obligations under the Contract.
7.5 Nothing in the Contract limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence, fraud, or fraudulent misrepresentation.
7.6 Subject to clause 7.3 and clause 7.5, the Supplier's total liability to the Customer arising under or in connection with the Contract, whether in contract, delict including negligence, breach of statutory duty, or otherwise, shall not exceed the amount of the Supplier’s Charges for the provision of the Services, except as expressly provided in these Conditions.
7.7 Subject to clause 7.3, clause 7.4 and clause 7.5, the Supplier shall not be liable for loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill, or indirect or consequential loss.
7.8 The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
7.9 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event and shall expire three months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
7.10 This clause 7 shall survive termination of the Contract.
8. Equipment Hire
8.1 The Equipment shall remain the property of the Supplier at all times.
8.2 Subject to clause 8.3, the Risk Period shall commence at such time as the Equipment is delivered to the Customer’s premises until the end of the Hire Period.
8.3 Where the Services are to be carried out overseas, outside of the UK, the Risk Period shall commence when the Equipment leaves the Supplier’s premises for delivery to the Customer’s premises, including during shipping, until the end of the Hire Period.
8.4 Subject to clause 8.5, the Customer undertakes to reimburse the Supplier on demand against all loss, theft, damage or destruction of the Equipment, whether or not caused by fault of the Customer, during the Risk Period and shall indemnify the Supplier against all claims by third parties arising out of the storage, transit, transport, unloading, loading and use of the Equipment.
8.5 Where the Equipment is being operated by or under the control of a representative of the Supplier at the Customer’s premises for the purposes of delivering the Services, the Customer shall not be liable for loss, theft, damage or destruction of the Equipment unless caused by the Customer’s negligence or fault. Clause 8.4 shall otherwise apply at all times during the Risk Period.
8.6 For the avoidance of doubt, where the Customer is authorised to handle or operate the Equipment in accordance with clause 4.1(k), clause 8.4 shall continue to apply.
9. Delivery of Equipment
9.1 Where the Equipment is to be delivered overseas:
(a) the Customer shall, at its own cost, be responsible for obtaining any import permits or licences required for delivery of the Equipment; and
(b) the Supplier shall procure that a duly authorised representative of the Supplier shall be present at delivery for inspection of the Equipment. The Equipment shall be deemed in good condition, complete and fit in every way for the purpose for which it is intended unless the Supplier gives written notice to the Customer within 48 hours of delivery.
9.2 The Customer shall only handle and unload the Equipment with prior instruction from the Supplier. The Customer shall ensure that proper manual handling practice is followed at all times and that the Customer’s staff are trained in the use of lifting and unloading equipment.
9.3 To facilitate delivery and installation, the Customer shall, at its own expense, provide all requisite facilities, access and suitable working conditions to enable delivery and installation to be carried out safely and expeditiously, details of which may be notified to the Customer in writing at the Quotation stage or before commencement of the Services.
9.4 Where the Equipment is delivered to the Customer’s premises before a representative of the Supplier is present, the Customer shall unload and store the Equipment in accordance with the Supplier’s prior instructions and clause 4.1(i).
10. Breakdown
10.1 The Customer shall give immediate written notice to the Supplier in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Customer’s possession or use of the Equipment. Failure to notify the Supplier within 24 hours of any such event shall constitute a Customer Default.
10.2 In the event the Equipment is damaged during the Risk Period and requires repair, the Customer shall continue to be liable to the Supplier for the cost of hire of the damaged Equipment for the duration of the repair.
10.3 Where the repair of Equipment is not practicable and the Supplier is not in a position to supply substitute Equipment of similar specification, the Supplier may terminate the Services from the date of breakdown.
10.4 The breakdown or halt of any single piece of Equipment does not grant the Customer the right to seek compensation or reimbursement for downtime experienced by any other Equipment operating alongside it.
11. Termination
11.1 Without affecting any other right or remedy available to it, if the duration of the Contract is not specified, the Supplier shall be entitled to terminate the Contract by giving the other party thirty days’ written notice.
11.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and, if such breach is remediable, fails to remedy that breach within 30 days of being notified in writing to do so;
(b) the other party takes any step or action in connection with entering administration, provisional liquidation, any composition or arrangement with creditors, applying to court for or obtaining a moratorium, being wound up, having a receiver appointed, ceasing to carry on business, or any analogous procedure in another jurisdiction;
(c) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that, in the terminating party's opinion, the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of the Customer.
11.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment;
(b) the Customer becomes subject to any of the events listed in clause 11.2(c) or clause 11.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them; and
(c) the Supplier reasonably believes that the Customer is about to become subject to any of the events listed in clause 11.2(b).
12. Consequences of Termination
12.1 On termination or expiry of the Contract:
(a) the Customer shall immediately pay to the Supplier all outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, payable immediately on receipt;
(b) the Customer shall return any Deliverables which have not been fully paid for. If the Customer fails to do so, the Supplier may enter the Customer's premises and take possession of them. Until returned, the Customer shall be solely responsible for their safe keeping and shall not use them for any purpose not connected with the Contract;
(c) the Customer shall ensure that the Supplier is provided with full access to the Customer’s premises as reasonably required to take possession of, uninstall and return any Equipment to the Supplier’s premises, as appropriate; and
(d) the Customer shall provide the Supplier, its employees, agents, consultants and subcontractors with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier.
12.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry.
12.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry shall remain in full force and effect.
13. General
13.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control.
13.2 Assignment and other dealings. The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with its rights and obligations without the prior written consent of the Supplier.
13.3 Confidentiality. Each party undertakes that it shall not disclose confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as required to perform the Contract or as required by law.
13.4 Entire agreement. The Quotation, these Conditions and the Purchase Order constitute the entire agreement between the parties and supersede all previous agreements, promises, assurances, warranties, representations and understandings between them. Nothing in this clause shall limit or exclude liability for fraud.
13.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties or their authorised representatives.
13.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
13.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but this shall not affect the validity and enforceability of the rest of the Contract.
13.8 Notices. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and delivered by hand, post, courier or email to the address specified in the Quotation.
13.9 Third party rights. Unless expressly stated otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
13.10 Governing law. The Contract, and any dispute or claim arising out of or in connection with it, shall be governed by and construed in accordance with the law of Scotland.
13.11 Jurisdiction. Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract.
